Rational Choice Attitudinalism? A Review of Epstein, Landes and Posner's The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice

25 Pages Posted: 7 Aug 2015 Last revised: 29 Aug 2015

See all articles by Charles M. Cameron

Charles M. Cameron

Princeton University - Department of Political Science; Princeton University - Woodrow Wilson School of Public and International Affairs

Lewis A. Kornhauser

New York University School of Law

Date Written: July 19, 2015

Abstract

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones.

We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.

Keywords: courts, judicial politics, case space

JEL Classification: C12, K40

Suggested Citation

Cameron, Charles M. and Kornhauser, Lewis A., Rational Choice Attitudinalism? A Review of Epstein, Landes and Posner's The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (July 19, 2015). NYU Law and Economics Research Paper No. 15-15. Available at SSRN: https://ssrn.com/abstract=2640600 or http://dx.doi.org/10.2139/ssrn.2640600

Charles M. Cameron

Princeton University - Department of Political Science ( email )

Corwin Hall
Princeton, NJ 08544-1013
United States

Princeton University - Woodrow Wilson School of Public and International Affairs

Princeton University
Princeton, NJ 08544-1021
United States

Lewis A. Kornhauser (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6175 (Phone)
(212) 995-4341 (Fax)

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